The Law Commission of Ontario (LCO) has undertaken a project to review Ontario’s statutory framework related to legal capacity, decision-making and guardianship, with a view to developing recommendations for reform to law, policy and practice in this area. This project has its roots in two of the LCO’s completed projects: the Framework for the Law as It Affects Older Adults and the Framework for the Law as It Affects Persons with Disabilities. During the course of those projects, the LCO heard considerable concern about how the laws in this area were operating in practice, and their impact on the autonomy, security, dignity and inclusion of older adults and persons with disabilities.
This project will focus on the core statutory framework of the Substitute Decisions Act (SDA) and Health Care Consent Act (HCCA), as well as the provisions of Part III of the Mental Health Act (MHA) related to assessment of legal capacity to manage property. It will not address the common-law, other statutes that touch upon consent and capacity issues, or the broader provisions of the MHA. Within this scope, the project will concentrate on the following broad issues:
- The standard for capacity, including tests for capacity and the various avenues and mechanisms for assessing capacity under the SDA, HCCA and MHA;
- Decision-making models, including an examination of the desirability and practical implications of alternatives to substitute decision-making, including supported and co-decision-making;
- Processes for appointments (for example of substitute decision-makers), whether through personal appointments or a public process, with a focus on appropriate use and on improving efficiency and accessibility;
- The roles and responsibilities of guardians and other substitute decision-makers, including potential for more limited forms of guardianship and consideration of options for those who do not have family or friends to assist them;
- Monitoring, accountability and prevention of abuse for substitute decision-makers or supporters, however appointed, and of misuse by third party service providers, including mechanisms for increasing transparency, identifying potential abuse and ensuring compliance with the requirements of the law; and
- Dispute resolution, including reforms to increase the accessibility, effectiveness and efficiency of current mechanisms.
In evaluating the current law and developing recommendations, the LCO will apply the Frameworks it has developed for the law as it affects persons with disabilities and older adults, as well as taking into account developments in international law, experiences in other jurisdictions, and concerns about practicality and implementability.
The Discussion Paper is based on the research and public consultations that the LCO has completed to-date, including a series of commissioned papers. It synthesizes information gathered to this point, identifies key issues and sets out potential directions for reform. It is intended as a foundation for public consultation and discussion of the issues identified. It is accompanied by a Summary of Consultation Issues intended to support the consultation process. Following the completion of public consultations, the LCO will release an Interim Report, containing analysis and draft recommendations.
PART ONE: REFORMING ONTARIO’S LEGAL CAPACITY, DECISION-MAKING AND GUARDIANSHIP LAW
I. BACKGROUND AND CONTEXTS IN WHICH THE LAW OPERATES
This Chapter sets out some of the background and contextual information that is helpful in understanding the operation of Ontario’s laws related to legal capacity, decision-making and guardianship.
Making decisions is an important part of our personal growth, as well as an expression of our values and identity. At this personal level, decision-making is connected to our autonomy, dignity, security and other fundamental values. Decision-making also has a public aspect, in that when others are being asked to rely on or implement our decisions, it is important for them to be sure that they understand the decision that has been made, that they can rely on the finality of that decision, and that all parties can be held to account to uphold their part of the decision. In this way, decision-making is also connected with the objectives of clarity, certainty and accountability. It is also important to understand decision-making as not only an outcome, but a process. A “good” decision-making process is often seen as having a value in itself, quite apart from the merits of the outcome.
The key elements of Ontario’s approach to legal capacity, decision-making and guardianship may be described as the presumption of capacity; a cognitive and decision-specific approach to the assessment of capacity; a tendency towards professionalized assessment of capacity; a substitute decision-making approach where a formalized approach to decision-making is required; a focus on the provision of procedural rights; and a preference for private relationships when individuals require assistance in decision-making.
While neither the HCCA nor the SDA refers to any particular class of persons, it is clear that some classes of persons will be more likely to be found legally “incapable” under one of these statutes. Persons with intellectual, developmental, mental health or cognitive disabilities are both more likely to be found to be legally incapable to make specific decisions within the definitions of these statutes and to be informally assumed to be incapable and therefore subject to assessments and other provisions of the statutes. In understanding the impact of these laws, it is important to consider the particular circumstances and needs of these groups, and to understand that while persons with disabilities will have in common the experience of attitudinal, systemic and other barriers to equality, their experiences may differ significantly in many ways. That is, the way in which an older person with dementia encounters the law and the needs he or she brings to it may be considerably different from those of a young person with an intellectual disability or of a person who acquires a brain injury or develops a mental health disability in mid-life, and this will significantly shape the law reform needs that are identified.
Laws in this area must understood in their larger context, including the complexities of family dynamics; the challenges raised by shortages in resources available to older adults and persons with disabilities and their families; problematic attitudes towards persons with disabilities and older adults; and the ethical issues raised for service providers and families in their relationships with individuals who may be at risk for exploitation or abuse or who may have difficulty in speaking or advocating for themselves. Inevitably, these laws are partial responses to complex practical, ethical and social issues.
Ontario’s laws in this area are the result of a comprehensive law reform effort in the late 1980s and early 1990s, including the Advisory Committee on Substitute Decision-making, the Enquiry on Mental Competency and the Review of Advocacy for Vulnerable Adults. As a result, Ontario has a modern, comprehensive and relatively coordinated legislative scheme. It is important to note, however, that the SDA and the Consent to Treatment Act (the predecessor to the HCCA) were developed in the context of the Advocacy Act, which created an ambitious institutional framework for advocacy for vulnerable individuals, but which was repealed late in the development of the legislative framework.
Pressures for reform in this area arise from a number of recent developments, including demographic shifts that are resulting in an increasing prevalence of dementia and other cognitive disabilities that may affect decision-making abilities; profound shifts in attitudes towards aging and disability; international developments such as the creation of the Convention on the Rights of Persons with Disabilities (CRPD); and acute pressures on resources at all levels. As well, the current statutory framework marked a profound transformation in Ontario law, and as carefully thought out as it was, there have been unanticipated consequences in some areas.
PART TWO: LEGAL CAPACITY
I. “LEGAL CAPACITY”: SETTING THE STANDARD
The concept of “capacity” is foundational to the law related to decision-making. Under both the SDA and the HCCA, where a decision must be made and an individual is found to lack the “capacity” to make that decision or that kind of decision, a substitute decision-maker (SDM) must do so in his or her place. Generally, those who are considered to have legal capacity are entitled to make decisions for themselves and are held responsible for those decisions, including decisions that others may consider reckless or unwise. On the other hand, persons who have been determined to lack legal capacity in a particular domain (or area of decision-making) or for a particular decision may lose the right to make decisions for themselves independently in that area: others will be responsible for making decisions on their behalf, and can in theory be held accountable for how those decisions are made. The implications for an individual of a determination of legal capacity are therefore momentous.
The concept of capacity is complex and contested, and has been understood in different ways at different times. It is closely related to concepts of autonomy and independence, in that it is intimately tied to the ability to make independent decisions and take responsibility for their consequences. It is also closely related to our assessments of and tolerance for not only risk but actual harm to individuals who are marginalized or disadvantaged.
Approaches to legal capacity have varied over time. The dominant current approach, which underpins Ontario’s legislative framework, is functional and cognitive. It focuses on the ability to make a specific decision or type of decision, at the time the decision is to be made, and in particular on the reasoning process involved in making decisions. This includes the abilities to understand, retain and evaluate the information relevant to the decision (including its likely consequences) and to weigh that information in the balance to reach a decision.
All of Ontario’s tests for capacity are based on the ability to “understand and appreciate” the relevant information. The HCCA and SDA create specific tests for each domain, setting out what information in particular the individual must be able to understand and appreciate. The major domains in Ontario are those for managing property, personal care, treatment, admission to a long-term care home, and creation of powers of attorney (POAs). The type of information involved in making a decision varies between subject areas; for example, the test for capacity is much more demanding for creating a POA for property than for a POA for personal care.
Any approach to capacity will result in some implementation issues. Ontario’s approach to legal capacity is subject to a number of critiques. While the test focuses on the ability to understand and appreciate the relevant information as opposed to actual understanding and appreciation, there are concerns that in practice this distinction may tend to blur. Similarly, there is a risk of the “appreciation” branch of the test collapsing into an outcomes-based approach, as in practice it may be difficult to distinguish between an inability to appreciate the consequences of a decision from an assessment of the nature and level of risk that differs from that of the person carrying out the assessment. As well, while legal capacity as it is understood in Ontario may fluctuate, so that a person who has legal capacity at one time may not have it at another, because determinations of incapacity may have long-term consequences (as with guardianship, for example), it may be difficult to ensure that substitute decision-making arrangements are only in place where they are truly necessary.
Options for improving Ontario’s cognitive test for capacity included strengthening or clarifying the wording of the statutory tests, or incorporating some of the material currently found in the Ministry of the Attorney General’s capacity assessment guidelines into the statute or regulation, or expanding their applicability to all forms of capacity assessment.
As well as these implementation challenges, Ontario’s approach to capacity is also subject to a more fundamental critique as being inconsistent with a disability-rights lens. Some have argued that any functional approach to capacity is incompatible with a disability-right